Building a high-performing team is crucial for any successful business. Attracting top talent, fostering a positive work environment, and effectively managing performance are all essential ingredients. However, navigating the legal landscape of employment in Australia can be complex. 

Here are some of the key legal considerations when hiring, retaining, and, if necessary, dismissing employees.

Attracting and retaining talent

Creating a dream team starts with attracting and retaining the right people. While competitive salaries and benefits are important, other factors play a significant role:

• Positive work environment: Fostering a culture of respect, inclusion, and open communication is vital. This can be achieved through clear communication channels, regular feedback. mechanisms, and initiatives promoting work-life balance.
• Diversity and inclusion: Embrace diversity in all its forms (gender, ethnicity, age, ability, etc.) and implement policies that promote equal opportunities.
• Career development: Offer opportunities for growth through training, mentoring, and clear career progression pathways.
• Rewards and recognition: Implement systems that acknowledge and reward employee contributions, boosting morale and motivation.

It’s important to remember that the above factors are no longer ‘nice-to-haves’, but are in fact critical to ensuring your workplace is compliant with WHS expectations. Employers have a responsibility under WHS law to reduce psychological harm in the workplace. As an employer you’re responsible for reducing psychosocial risks such as poor support, lack of role clarity, low job control, unreasonable demands, inadequate recognition and of course bullying, harassment or conflict.

Documenting entitlements and processes

Formalising your commitments is crucial for accountability and consistency. This should include:

Employment Contracts

These should be comprehensive, covering key aspects like:

• Hours of work: Ordinary hours, overtime provisions, and flexibility arrangements.
• Pay: Base salary, bonuses, allowances, and pay progression.
• Leave entitlements: Annual leave, sick leave, personal leave, and any other leave offered.
• Termination procedures: Notice periods, redundancy entitlements, and grounds for dismissal.
• Confidentiality: Protecting company information.
• Intellectual property: Ownership of work created during employment.

Policies and Procedures

Develop clear policies on:

• Code of conduct: Setting expectations for employee behaviour.
• Performance management: Outlining performance review processes and expectations.
• Grievance handling: Providing a fair and transparent process for resolving workplace disputes.
• Anti-discrimination and harassment: Promoting a safe and inclusive workplace.
• Social media: Guiding employee conduct on social media platforms.

Employee Handbooks

Developing an employee handbook – a central resource for employees, summarising key policies, procedures, and expectations – will ensure that all employees are on the same page.

Managing performance

Addressing underperformance is crucial for maintaining a high-performing team and should involve:

• Clear expectations: Clearly define roles, responsibilities, and performance standards from the outset.
• Regular performance reviews: Conduct regular reviews to provide feedback, identify areas for improvement, and address any performance issues.
• Performance improvement plans: For employees struggling to meet expectations, implement a structured plan with clear goals, support, and timelines.
• Disciplinary action: If performance doesn’t improve, follow a fair and consistent disciplinary process, which may include warnings, ultimately leading to termination if necessary.

Termination of employment

Dismissing an employee should be handled with care to mitigate legal risks and should include:

Valid reason

Ensure you have a valid reason for dismissal, such as:

• Poor performance: Documented evidence of consistent underperformance despite support and opportunities for improvement.
• Misconduct: Serious breaches of company policy or code of conduct, like theft, fraud, or harassment.
• Redundancy: Genuine redundancy due to operational changes, with proper consultation and redeployment efforts.

Procedural fairness

Follow a fair process, including:

• Explanation. Providing a clear explanation of the reasons for dismissal.
• Response. Giving the employee an opportunity to respond to allegations.
• Support Person. Allowing the employee to have a support person present during meetings.
• Mitigating circumstances. Considering any mitigating circumstances.

Notice periods

Provide the employee with the correct notice period or payment in lieu of notice, as per the NES, award, agreement, or contract.

Redundancy pay

If the dismissal is due to genuine redundancy, ensure the employee receives their legal entitlements.

Unfair dismissal

Be aware of the grounds for unfair dismissal claims and take steps to minimise the risk, such as ensuring the dismissal is not harsh, unjust, or unreasonable, having a valid reason for dismissal and following a fair procedure. Employees cannot be dismissed for discriminatory reasons.

Seeking legal advice

Navigating employment law can be tricky.  It’s crucial to seek expert legal advice when developing employment contracts and policies, dealing with performance issues, contemplating terminating an employee’s employment, or facing an unfair dismissal claim.

By proactively addressing the legal aspects of building your team, you can create a thriving workplace while minimising potential risks and ensuring compliance with Australian employment law.